Retailer Sues Over Misdirected E-Mail

An Internet service provider's misrouting of a retailer's e-mail usually ends with an apology and fixing the router, but a recent case in Minnesota has spawned two lawsuits.

Mark and Tammy Axford, owners of Clearwater Antiques Inc. and MT Cupboards Estates in Annandale, MN, claim that local ISP Lakedale Link LLC, Buffalo, MN, misdirected messages addressed to info@clearwaterantiques.com. The messages went to info@bergstromltd.com, a Bergstrom & Company Ltd. address. The Axfords conduct auctions on eBay and estate and dog sales.

"The results of these mistakes were to damage Clearwater's business severely as a result of unusually low attendance and bidding at their sales for more than six months of last calendar," said the complaint filed Aug. 7 with the 10th Judicial District in the District Court of Minnesota's Wright County.

"[The] plaintiff's business endeavors and its business reputation have also been seriously harmed as the result of negligence on the part of defendant Lakedale."

Clearwater seeks $120,000 in losses and damages from Lakedale and from Bergstrom, Paynesville, MN, arguing that Bergstrom should have informed it of the misdelivered e-mail.

"We believe that the problem originated because the ISP's routers routed e-mails according to the prefix of the e-mail address and not on the suffix of the e-mail address," said Linda K. Hopkins, attorney at law and partner with Intelliware International Law Firm, Roseville, MN.

Lawyers for Bergstrom did not return a call, nor did Lakedale.

The complaint covers a six-month period beginning in April 2001. Clearwater signed the domain registration and Web hosting contract with Lakedale on Feb. 16, 2001. But it was only on Sept. 21, 2001, that John Bergstrom is alleged to have telephoned Mark Axford about the e-mails.

Bergstrom is alleged to have told Axford he had received Clearwater e-mails for six months. The only e-mails Axford claimed he got to see were the six forwarded Sept. 21 by Bergstrom. Hopkins said it is hard to estimate how many e-mails were lost.

"It's undetermined at this point," Hopkins said. "Even if you multiply five times every workday [since April 2001], that's a lot."

The complaint was filed under Minnesota's common-law principle involving negligence.

"[Bergstrom] failed to act as a reasonable person in business would act and thereby significantly increased the damage caused to the plaintiff," Hopkins said. "The plaintiff had no idea that this was going on. Furthermore, [Bergstrom] had specialized knowledge that this was causing economic harm to Clearwater because he knew they were about Clearwater's business."

There is little precedence for such a legal filing by retailers.

"It may be that they just settle," she said. "Most companies are sensitive about their Web sites being perceived as unsafe so they certainly don't want this publicity."

The argument can be made that Axford took a long time to initiate legal recourse.

"The attorneys he contacted in the Twin Cities there did not understand the nuances of domain names and routers and ISPs," Hopkins said. "So they had a very difficult time articulating to the defendants what the problem was. So, Mr. Axford, after communicating with another attorney for a while and not getting anywhere, asked my firm to step in."

Bergstrom (bergstromltd.com), which facilitates manufacturing outsourcing for metal, plastics and fiberglass, has filed a counterclaim against Lakedale. In the counterclaim, John Bergstrom denies receiving any "volume" of e-mail, or significant numbers, for Clearwater prior to Sept. 21. Nor did he intend to cause injury.

"The defendant [Bergstrom] affirmatively alleges that the defendant's conduct in notifying the senders of e-mail of their error and of how to correct it went beyond any duty required of the defendant and that the plaintiff's claims against the defendant are in bad faith and intended for purposes of harassment," Bergstrom lawyers Frauenshuh & Spooner, Paynesville, said in their answer.

In the cross claim filed Sept. 11, Bergstrom said Lakedale should be blamed and held liable for damages claimed by Clearwater. It now seeks costs in excess of $55,000 from Lakedale.

Lawyers from Clearwater and Bergstrom are expected to meet soon to arrange a date for a mediation hearing. If that fails, the court will decide the fate of the cases.

Hopkins is confident that Clearwater has a case.

"In general, negligence is a fairly low standard to meet in terms of proof once you've established a duty," she said. "Once the courts in Minnesota establish that duty -- I'm assuming they will -- then the other courts, depending on their temperament, can accept that standard as well since Internet problems can spring up across the country.

"Once you've got an ISP misrouting your e-mail, this will definitely have to be a red flag for any company that gets e-mails that they can see are not meant for them, and I don't mean spam, but that's really directed to another entity."

Such misrouting has happened before. Thousands of e-mails intended for furniture retailer Bombay Company Inc. in early 2000 went to an importer who lived in upstate New York. That person owned the bombaycompany.com address from January to October 2000, when the Dallas/Fort Worth retailer paid $5,000 for it. The company did not go to court to recover the e-mails.